As a statement of policy for the ABA, the Resolution had implications for the ABA’s member lawyers and legal professionals, and especially for the ABA Judicial Division. The Division represents judges, lawyers, tribal members, court administrators, academics, and students interested in the courts and the justice system. The ABA publishes the Annotated Model Code of Judicial Conduct which is the nationally recognized authority on judicial ethics. The ABA’s judicial community took no position on Resolution 400.
On February 9, 2023, three days after the ABA adopted its Resolution, bicameral bills entitled “Supreme Court Ethics Act” (SCEA) were introduced into the U.S. Senate and the House of Representatives as S. 325 and H.R. 927. The bills would require the Court to appoint an Ethics Investigation Counsel, who would adopt rules and protocols for enforcing the Code. The bills were assigned to their respective Senate and House Committees on the Judiciary, where they still reside.
Also on February 9, other bicameral bills entitled “Supreme Court Ethics, Recusal, Transparency Act” (SCERT) were introduced as S. 359 and H.R. 926. Both were also assigned to their respective Judiciary Committees. SCERT would require the Supreme Court to adopt a Code of Conduct and refer all complaints against a justice to a Judicial Investigation Panel. SCEA remains in Committee; however, on September 5, 2023, SCERT passed out of the Senate Judiciary Committee and was placed on the active Senate Legislative Calendar. It is currently pending congressional action.
A little more than two months later, on November 13, 2023, the Supreme Court adopted a Code of Conduct for itself, but it had no enforcement mechanism. Resolution 400 anticipated the Court’s strategy and addressed it: The Resolution expressly called for a code that was binding and not merely aspirational. The Court’s new Code fulfilled neither the spirit nor the intent of Resolution 400.
In failing to adopt a disciplinary process, the Court places its judicial credibility at risk. When a complaint alleges that an individual justice has a conflict of interest that would impact the justice’s judgment in a matter pending before the Court, the appearance of impropriety is as dangerous as the fact. Both undermine public confidence in the Court’s decisions. The justice does not have the protection of due process when there is no forum to objectively investigate and resolve the complaint.
The report accompanying Resolution 400 noted that it “is not grounded upon, nor does it ask the ABA House of Delegates to make any findings, or comment upon, any particular conduct by any one or more current or former members of the Court.” However, the premise of the Resolution is that a code of conduct must be enforceable to be meaningful. Subsequent events tested that premise. What follows is a discussion of the genesis of Resolution 400, pending congressional action, and the current state of ethics regulation at the Court.
Journey to a Binding Code of Conduct
On April 29, 2021, President Joseph R. Biden issued Executive Order 14023, which created the Presidential Commission of the Supreme Court of the United States. On December 7, 2021, the Commission released its Final Report, which raised the question of whether the Court should adopt a Code of Conduct for its members. The Commission speculated that the Court’s adoption of an internal Code would be beneficial, even if there were no enforcement mechanism. At the outset, the notion of the Court adopting a Code was itself aspirational, and the Commission did not address what would happen if a Code were adopted and violated.
In a report dated December 6, 2023, the Congressional Research Service issued a report. That report concluded Congress has substantial power over the Supreme Court, including the power to impose certain rules and procedures on the Court under the “necessary and proper” clause. In turn, the Court has the power to declare congressional acts to be unconstitutional. The report noted that in the past, the three branches of government have often deferred to each other and avoided outright confrontation when overlaps of their respective powers occurred. The report also raised the possibility that a constitutional issue could be so provocative that separation of powers could be a recipe for stalemate on questions of first impression, such as whether Congress’s power to impose procedures on the Court overrides the Court’s power to resist them. The report posed another important question: If the Court adopted a Code of Conduct, would the Code change the Court’s behavior?
On February 9, 2023, both bicameral bills, SCEA and SCERT, were introduced in Congress. Both would require the Supreme Court to adopt a Code of Conduct and a process for receiving and adjudicating complaints. There was a subtle difference between the approaches of SCEA and SCERT: SCEA would establish a new public officer, Ethics Investigations Counsel (EIC), which the Court would have to appoint and compensate, along with as many lawyers and support personnel as the EIC would deem necessary. SCERT would require the Court to submit any complaints to a five-member Judicial Investigations Panel (JIP). The JIP would investigate the complaints and present its findings and conclusions to the Court. Under SCERT, the public would have access to the Court’s ethics rules; it is unclear whether the JIP’s report would be available as a public record.
The Supreme Court Adopts a Code
On November 13, 2023, the Supreme Court released a “Statement of the Court Regarding a Code of Conduct.” The new Code consists of five Canons, including Canon 2B, which expressly prohibits the justices from allowing family or other relationships to influence official conduct or judgment.
Immunity and Impunity
On July 1, 2024, the Supreme Court filed an Opinion in the matter of Trump v. United States. The former president had sought dismissal of a criminal indictment against him for conduct relating to the January 6, 2021, attack on the Capitol. In remanding the case back to the district court for further action, the Court made a historic finding: that both former and future presidents are absolutely immune from criminal prosecution for acts they performed in their official capacity. The Court further imposed on the plaintiff the burden to rebut the presumption of immunity. The finding of absolute presidential immunity from criminal prosecution was both new and highly controversial. To avoid any confusion as to their intent, the majority stated: “The essence of immunity ‘is its possessor’s entitlement not to have to answer for his conduct in court.’ [citation omitted] Presidents therefore cannot be indicted based on conduct for which they are immune from prosecution.” The substantive implications of the Court’s finding on presidential immunity are beyond the scope of this discussion. What is interesting here is the harsh language used by the justices in criticizing each other’s tone and even scholarship. See, for example, the joint dissent of Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, that the decision makes a mockery of the principle that no man is above the law and “[w]ith fear for our democracy, I dissent.” Also see Justice Jackson’s separate dissent: “In the meantime, because the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms, I dissent;” and Justice Clarence Thomas’s reference to the dissenters’ tone of “chilling doom” Query: How can the Supreme Court maintain credibility with their constituents when they have no credibility with each other?
Conclusion
Did Resolution 400 accomplish its goals? Partially: The Supreme Court adopted a Code of Conduct, but the Code is not enforceable. The intensity of the public debate over alleged failures to recuse by some justices in the matter of Trump v. United States suggests that the issue was serious, one that would have triggered a disciplinary proceeding if such a process existed.
Resolution 400 demonstrated that the ABA’s substantial legal community, as represented by its House of Delegates, expects the Court to have the ability and the will to police itself: “This Resolution rests upon the premise that the Court has the capacity to successfully address these and other challenges in adopting a binding code of ethics.” Combined with Congress’s demonstrated resolve to achieve the same goal, the pressure on the Supreme Court to reform its ethical practice is formidable.